Motion for Sanctions – Page 89 – Electronic Discovery Law

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Bennett v. Martin, 2009 WL 4048111 (Ohio Ct. App. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege

Nature of Case: Age discrimination

Electronic Data Involved: ESI, hard drives

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 878 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Where plaintiff settled its claim of intentional spoliation against one defendant no longer in the case but failed to bring that claim against the defendants that remained and where the evidence was undisputed that the defendant who had settled all claims and was no longer a party to the litigation had maintained exclusive custody and control of the at-issue hard drives and plaintiff offered no evidence of the remaining defendants? involvement in destroying the relevant hard drives, the court held that the remaining defendants could not be sanctioned under either Ohio law or Federal law

Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: Hard drives

Nieves v. Kmart Corp., 2009 WL 1605623 (V.I. June 8, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion for a spoliation instruction where plaintiff failed to demonstrate that the allegedly spoliated videotape ever existed and where a witness testified at deposition that since he didn?t keep the videotape after checking it, it means no film was made of the relevant incident

Electronic Data Involved: Videotape

Gucci Am., Inc., v. Gucci, 2009 WL 440463 (S.D.N.Y Feb. 20, 2009)

Dec 01 2009

Key Insight: Court found that defendant violated temporary restraining order by failing to disclose certain relevant emails and other ESI discovered following forensic examination of defendant?s computer and rejected defendant?s assertions that the failure resulted from his lack of understanding of his discovery obligations, mistake of his counsel, and his own lack of computer savvy; Court ordered defendant to pay attorneys? fees and costs attributable to the additional discovery and motions practice undertaken as a result of non-disclosure

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, email

Bolger v. D.C., 608 F. Supp. 2d 10 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendants admitted destroying relevant radio communications but argued that such destruction was not sanctionable because it unintentionally occurred as the result of a routine operation of the police communication systems and because the information destroyed was of minimal relevance, court found that defendants were under an obligation to preserve and had (at least) negligently destroyed the radio communications, but declined to order an adverse inference because plaintiff?s proffer of evidence regarding the communications? relevance and the proper inference from their destruction was ?too speculative?

Nature of Case: ? 1983 Action against D.C. police for constitutional violations

Electronic Data Involved: Radio communications (“radio runs”)

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

N.A. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 WL 4110889 (S.D. Ohio Nov. 19, 2009)

Dec 01 2009

Key Insight: Where third party sought sanctions/costs and attorney?s fees for plaintiff?s alleged violation of its obligation to avoid the imposition of undue burden or expense on a non-party following the third party?s expenditure of more than $50,000 in responding to plaintiff?s subopoena (including the cost of converting electronically stored information for review), court denied third party?s motion where plaintiff?s subpoena sought relevant documents within a reasonable time frame and where third party voluntarily complied with the subpoena without conditioning its compliance on reimbursement

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

Lewis v. Ryan, 2009 WL 3486702 (S.D. Cal. Oct. 23, 2009)

Dec 01 2009

Key Insight: Court adopted recommendation of the magistrate judge to impose an adverse inference and exclude certain evidence as sanction for spoliation where defendants indicated they could not locate information, including ESI, which, according to records retention requirements, should have been in their possession at the time plaintiff propounded his request and thus should have been preserved and produced; court found ?clear and convincing evidence that defendants were ?at fault? for recklessly and negligently allowing the documents to be destroyed

Nature of Case: Civil rights complaint arising from service of pork to Muslim inmate

Electronic Data Involved: Hard copy, ESI

Tag:Motion for Sanctions